After we went legal here in Oregon, this question has come up quite a bit among both medical and recreational marijuana users: If I smoke weed (recreational or medical) can I lose my job? The answer to that my fellow pothead friends, is yes. Under federal law marijuana is still an illegal drug. Despite the fact that the 2016 Budget Act defunded Department Of Justice from meddling with state medical marijuana laws, this doesn’t change the reality that marijuana (medical or not) remains a Schedule I controlled substance under the federal Controlled Substances Act.
Congress has yet to make any moves to remove marijuana from Schedule I of the Controlled Substances Act and The 2016 Budget Act doesn’t prevent the DOJ from administering federal law with respect to recreational (non-medical) marijuana, even in states like Oregon and Washington that have created and enacted laws legalizing recreational marijuana use and possession
So if you currently work in Oregon and you smoke every now and again or regularly, be aware that you can still lose your job. Starting Oct. 1, Oregonians 21 and older were legally able to purchase marijuana at retail shops across the state and consume/use it in the privacy of their home. When it comes to the workplace it’s a bit of a different story, according to legal experts. Employers looking to create drug-free policies won’t be directly affected by the new state law and it doesn’t restrict them from firing you if you test positive for marijuana, even if you’re not smoking or under the influence on the job. Employers still have the legal right to make the rules and still have the right to let go of workers for off-duty consumption.
Here are 5 things you need to know about marijuana and the workplace.
- State courts have consistently come down on the side of employers who’ve fired workers for off-duty use of the drug, even when it’s been prescribed for medicinal purposes.
Even in the four western states where medical marijuana had been at one time given the a-ok, state courts have sided with employers, saying they are well within their rights because federal law classifies marijuana as an illegal drug.
- It would literally take an act of Congress to change the status quo.
Marijuana was put on the Schedule 1 of the federal Controlled Substances Act by Congress a long time ago. It’s actually been characterized at the same level as heroin, LSD and ecstasy and therefore declared as illegal for any and all purposes. Until federal lawmakers remove marijuana from that Schedule 1 list of narcotics, it will not be approved for medical use for recreational or medicinal reasons in the workplace. For the time being, the battle and bitter rivalry between state and federal laws will stay the same.
- Employers have the right to treat marijuana use differently from alcohol use.
If you come to work buzzed whether it’s booze or cannabis, it’s only common sense to prepare yourself to be severely punished or even fired. But even binge drinking all weekend and the hangover that comes with it will wear off. The point; you still might get different treatment when it comes to weed.
Alcoholism is actually considered to be a protected disability under the Americans with Disabilities Act, which essentially means an employer can’t discriminate (by law) against an employee who is an alcoholic if they are not impaired on the job. As such, the employer has to embrace an employee’s need for treatment.
- Employers retain wide latitude to conduct drug tests, as long as they have an established practice and follow the policy.
Employers are allowed to drug test everyone or just specific positions or just positions that are safety-sensitive. Some companies have zero tolerance policies. Those working in law enforcement, transportation, operate heavy machinery or around drugs (nurses or medical assistants, for example) is likely to be susceptible to rigid policies.
Employers are able to implement a policy for random drug testing, created specifically to prevent singling out any one person suspected or implicated of unauthorized behavior.
Employers are also able to test on the foundation of having a reasonable source of suspicion, like an employee who has bloodshot eyes and reeks of marijuana.
They can also test for cause. If you get hurt or incur an injury on the job, your employer has the legal right to test you to dismiss or affirm that drug and alcohol use as a possible cause. Another permitted policy is case-by-case review to consider all the circumstances that could be involved.
“If a company wants to test at any of those points, they need to have a policy in place,” said Portland lawyer Andrew Schpak. “If (they) don’t have a policy, (they) haven’t given employees notice of intent to test.”
- Short of congressional action, the status quo might change if someone comes up with a better way of determining when a person is under the influence.
The one major hurdle for both sides is the scarcity when it comes to obtaining scientific information or evidence on that issue.
“We have standards for literally every other controlled substance. With alcohol, we know what it means to be under the influence, based on blood-alcohol content. We don’t have that information with marijuana,” she said.
“Unless and until we have it from the scientific community, I think it’s in the employer’s interest — it’s in all our best interests – to err on side of safety.”